INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Indemnification Agreement (“Agreement”), dated as of _______, 201__, is by and
between CorMedix Inc., a Delaware corporation (the
“Company”) and [___________________] (the
“Indemnitee”).
WHEREAS, Indemnitee is [a director/an officer] of the Company [the
Company expects Indemnitee to join the Company as a
director];
WHEREAS, both the Company and Indemnitee recognize the increased
risk and burden of litigation and other claims being asserted
against directors and officers of public companies;
WHEREAS, the board of directors of the Company (the
“Board”) has determined that enhancing the ability
of the Company to retain and attract as directors and officers the
most capable persons is in the best interests of the Company and
that the Company therefore should seek to assure such persons that
appropriate indemnification and insurance coverage is available;
and
WHEREAS, in recognition of the need to provide Indemnitee with
protection against personal liability, in order to procure
Indemnitee’s [continued] service as a [director/officer] of
the Company and to enhance Indemnitee’s ability to serve the
Company in an effective manner, and in order to provide such
protection pursuant to express contract rights (intended to be
enforceable irrespective of, among other things, any amendment to
the Company’s certificate of incorporation or bylaws
(collectively, the “Constituent
Documents”), any change
in the composition of the Board or any change in control or
business combination transaction relating to the Company), the
Company wishes to provide in this Agreement for the indemnification
of, and the advancement of Expenses (as defined in Section
1(f) below) to, Indemnitee as set
forth in this Agreement and to the extent insurance is maintained
for the [continued] coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE, in consideration of the foregoing and the
Indemnitee’s agreement to [continue to] provide services to
the Company, the parties agree as follows:
1. Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) “Beneficial
Owner” has the meaning
given to the term “beneficial owner” in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
(b) “Change
in Control” means the
occurrence after the date of this Agreement of any of the following
events:
(i) any
Person is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing 25% or more of the
Company’s then outstanding Voting Securities;
(ii) the
consummation of a reorganization, merger or consolidation, unless
immediately following such reorganization, merger or consolidation,
all of the Beneficial Owners of the Voting Securities of the
Company immediately prior to such transaction beneficially own,
directly or indirectly, more than 50% of the combined voting power
of the outstanding Voting Securities of the entity resulting from
such transaction;
(iii) during
any period of two consecutive years beginning after July 31, 2017,
individuals who at the beginning of such period constituted the
Board (including for this purpose any new directors whose election
by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute at least a majority of the Board; or
(iv) the
stockholders of the Company approve a plan of complete liquidation
or dissolution of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets.
(c) ”Claim” means:
(i) any
threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, arbitrative, investigative or other, and whether
made pursuant to federal, state or other law; or
(ii) any
inquiry, hearing or investigation that the Indemnitee reasonably
determines might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution
mechanism.
(d) “Delaware
Court” shall have the
meaning ascribed to it in Section 8(e) below.
(e) “Disinterested
Director” means a
director of the Company who is not and was not a party to the Claim
in respect of which indemnification is sought by
Indemnitee.
(f) “Expenses”
means any and all expenses, including attorneys’ and
experts’ fees, court costs, transcript costs, travel
expenses, duplicating, printing and binding costs, telephone
charges, and all other costs and expenses incurred in connection
with investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a witness or
participate in, any Claim. Expenses also shall include (i) Expenses
incurred in connection with any appeal resulting from any Claim,
including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal
bond or its equivalent, and (ii) for purposes of Section 4 only,
Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights
under this Agreement, by litigation or otherwise. Expenses,
however, shall not include amounts paid in settlement by Indemnitee
or the amount of judgments or fines against
Indemnitee.
(g) “Expense
Advance” means any
payment of Expenses advanced to Indemnitee by the Company pursuant
to Section 3 or Section
4 hereof.
(h) “Indemnifiable
Event” means any event or
occurrence, whether occurring [before,] on or after the date of
this Agreement, related to the fact that Indemnitee is or was a
director or officer of the Company or any subsidiary of the
Company, or is or was serving at the request of the Company as a
director or officer of any other corporation, limited liability
company, partnership, joint venture, trust or other entity or
enterprise (collectively with the Company,
“Enterprise”) or by reason of an action or inaction by
Indemnitee in any such capacity (whether or not serving in such
capacity at the time any Loss is incurred for which indemnification
can be provided under this Agreement).
(i) “Independent
Counsel” means a law
firm, or a member of a law firm, that is experienced in matters of
corporation law and neither presently performs, nor in the past two
years has performed, services for either: (i) the Company or
Indemnitee (other than in connection with matters concerning
Indemnitee under this Agreement or of other indemnitees under
similar agreements) or (ii) any other party to the Claim giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not
include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this
Agreement.
(j) “Losses”
means any and all Expenses, damages, losses, liabilities,
judgments, fines, penalties (whether civil, criminal or other),
ERISA excise taxes, amounts paid or payable in settlement,
including any interest, assessments, and all other charges paid or
payable in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing
to defend, be a witness or participate in, any
Claim.
(k) “Person”
means any individual, corporation, firm, partnership, joint
venture, limited liability company, estate, trust, business
association, organization, governmental entity or other entity and
includes the meaning set forth in Sections 13(d) and 14(d) of the
Exchange Act.
(l) “Standard
of Conduct Determination”
shall have the meaning ascribed to it in Section 8(b)
below.
(m) “Voting
Securities” means any
securities of the Company that vote generally in the election of
directors.
2. Indemnification.
Subject to Section 8 and
Section 9 of this Agreement, the
Company shall indemnify Indemnitee, to the fullest extent permitted
by the laws of the State of Delaware in effect on the date hereof,
or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification, against any
and all Losses if Indemnitee was or is or becomes a party to or
participant in, or is threatened to be made a party to or
participant in, any Claim by reason of or arising in part out of an
Indemnifiable Event, including, without limitation, Claims brought
by or in the right of the Company, Claims brought by third parties,
and Claims in which the Indemnitee is solely a
witness.
3. Advancement of
Expenses. Indemnitee shall have
the right to advancement by the Company, prior to the final
disposition of any Claim by final adjudication to which there are
no further rights of appeal, of any and all Expenses actually and
reasonably paid or incurred by Indemnitee in connection with any
Claim arising out of an Indemnifiable Event. Indemnitee’s
right to such advancement is not subject to the satisfaction of any
standard of conduct. Without limiting the generality or effect of
the foregoing, within 30 days after any request by Indemnitee, the
Company shall, in accordance with such request, (a) pay such
Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds
in an amount sufficient to pay such Expenses, or (c) reimburse
Indemnitee for such Expenses. In connection with any request for
Expense Advances, Indemnitee shall not be required to provide any
documentation or information to the extent that the provision
thereof would undermine or otherwise jeopardize attorney-client
privilege. In connection with any request for Expense Advances,
Indemnitee shall execute and deliver to the Company an undertaking
(which shall be accepted without reference to Indemnitee’s
ability to repay the Expense Advances), in the form attached hereto
as Exhibit
A, to repay any amounts paid,
advanced, or reimbursed by the Company for such Expenses to the
extent that it is ultimately determined, following the final
disposition of such Claim, that Indemnitee is not entitled to
indemnification hereunder. Indemnitee’s obligation to
reimburse the Company for Expense Advances shall be unsecured and
no interest shall be charged thereon.
4. Indemnification for
Expenses in Enforcing Rights.
To the fullest extent allowable under applicable law, the Company
shall also indemnify against, and, if requested by Indemnitee,
shall advance to Indemnitee subject to and in accordance
with Section 3, any Expenses
actually and reasonably paid or incurred by Indemnitee in
connection with any action or proceeding by Indemnitee for (a)
indemnification or reimbursement or advance payment of Expenses by
the Company under any provision of this Agreement, or under any
other agreement or provision of the Constituent Documents now or
hereafter in effect relating to Claims relating to Indemnifiable
Events, and/or (b) recovery under any directors’ and
officers’ liability insurance policies maintained by the
Company. However, in the event that Indemnitee is ultimately
determined not to be entitled to such indemnification or insurance
recovery, as the case may be, then all amounts advanced under
this Section 4 shall be repaid.
Indemnitee shall be required to reimburse the Company in the event
that a final judicial determination is made that such action
brought by Indemnitee was frivolous or not made in good
faith.
5. Partial
Indemnity. If Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for a portion of any Losses in respect of a Claim
related to an Indemnifiable Event but not for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is
entitled.
6. Notification and
Defense of Claims.
(a) Notification of
Claims. Indemnitee shall notify
the Company in writing as soon as practicable of any Claim which
could relate to an Indemnifiable Event or for which Indemnitee
could seek Expense Advances, including a brief description (based
upon information then available to Indemnitee) of the nature of,
and the facts underlying, such Claim. The failure by Indemnitee to
timely notify the Company hereunder shall not relieve the Company
from any liability hereunder unless the Company’s ability to
participate in the defense of such claim was materially and
adversely affected by such failure. If at the time of the receipt
of such notice, the Company has directors’ and
officers’ liability insurance in effect under which coverage
for Claims related to Indemnifiable Events is potentially
available, the Company shall give prompt written notice to the
applicable insurers in accordance with the procedures set forth in
the applicable policies. The Company shall provide to Indemnitee a
copy of such notice delivered to the applicable insurers, and
copies of all subsequent correspondence between the Company and
such insurers regarding the Claim, in each case substantially
concurrently with the delivery or receipt thereof by the
Company.
(b) Defense of
Claims. The Company shall be
entitled to participate in the defense of any Claim relating to an
Indemnifiable Event at its own expense and, except as otherwise
provided below, to the extent the Company so wishes, it may assume
the defense thereof with counsel reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its
election to assume the defense of any such Claim, the Company shall
not be liable to Indemnitee under this Agreement or otherwise for
any Expenses subsequently directly incurred by Indemnitee in
connection with Indemnitee’s defense of such Claim other than
reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ its own legal counsel in
such Claim, but all Expenses related to such counsel incurred after
notice from the Company of its assumption of the defense shall be
at Indemnitee’s own expense; provided, however, that if (i)
Indemnitee’s employment of its own legal counsel has been
authorized by the Company, (ii) Indemnitee has reasonably
determined that there may be a conflict of interest between
Indemnitee and the Company in the defense of such Claim and has
advised the Company in writing of the basis of such determination,
(iii) after a Change in Control, Indemnitee’s employment of
its own counsel has been approved by the Independent Counsel or
(iv) the Company shall not in fact have employed counsel to assume
the defense of such Claim, then Indemnitee shall be entitled to
retain its own separate counsel (but not more than one law firm
plus, if applicable, local counsel in respect of any such Claim)
and all Expenses related to such separate counsel shall be borne by
the Company.
7. Procedure upon
Application for Indemnification. In order to obtain indemnification pursuant to
this Agreement, Indemnitee shall submit to the Company a written
request therefor, including in such request such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final
disposition of the Claim, provided that documentation and
information need not be so provided to the extent that the
provision thereof would undermine or otherwise jeopardize
attorney-client privilege. Indemnification shall be made insofar as
the Company determines Indemnitee is entitled to indemnification in
accordance with Section 8 below.
8. Determination of Right
to Indemnification.
(a) Mandatory
Indemnification; Indemnification as a Witness.
(i) To the extent that Indemnitee shall
have been successful on the merits or otherwise in defense of any
Claim relating to an Indemnifiable Event or any portion thereof or
in defense of any issue or matter therein, including without
limitation dismissal without prejudice, Indemnitee shall be
indemnified against all Losses relating to such Claim in accordance
with Section 2 to the fullest
extent allowable by law, and no Standard of Conduct Determination
(as defined in Section 8(b))
shall be required.
(ii) To the extent that
Indemnitee’s involvement in a Claim relating to an
Indemnifiable Event is to prepare to serve and serve as a witness,
and not as a party, the Indemnitee shall be indemnified against all
Losses incurred in connection therewith to the fullest extent
allowable by law and no Standard of Conduct Determination (as
defined in Section 8(b)) shall
be required.
(b) Standard
of Conduct. To the extent that
the provisions of Section 8(a) are inapplicable to a Claim related to an
Indemnifiable Event that shall have been finally disposed of, any
determination of whether Indemnitee has satisfied any applicable
standard of conduct under Delaware law that is a legally required
condition to indemnification of Indemnitee hereunder against Losses
relating to such Claim and any determination that Expense Advances
must be repaid to the Company (a “Standard of Conduct
Determination”) shall be
made as follows:
(i) if
no Change in Control has occurred, (A) by a majority vote of the
Disinterested Directors, even if less than a quorum of the Board,
(B) by a committee of Disinterested Directors designated by a
majority vote of the Disinterested Directors, even though less than
a quorum or (C) if there are no such Disinterested Directors, by
Independent Counsel in a written opinion addressed to the Board, a
copy of which shall be delivered to Indemnitee; and
(ii) if
a Change in Control shall have occurred, (A) if the Indemnitee so
requests in writing, by a majority vote of the Disinterested
Directors, even if less than a quorum of the Board or (B)
otherwise, by Independent Counsel in a written opinion addressed to
the Board, a copy of which shall be delivered to
Indemnitee.
The
Company shall indemnify and hold harmless Indemnitee against and,
if requested by Indemnitee, shall reimburse Indemnitee for, or
advance to Indemnitee, within 45 days of such request, any and all
Expenses incurred by Indemnitee in cooperating with the person or
persons making such Standard of Conduct Determination.
(c) Making
the Standard of Conduct Determination. The Company shall use its reasonable best
efforts to cause any Standard of Conduct Determination required
under Section 8(b) to be made
as promptly as practicable. If the person or persons designated to
make the Standard of Conduct Determination under Section
8(b) shall not have made a
determination within 30 days after the later of (A) receipt by the
Company of a written request from Indemnitee for indemnification
pursuant to Section 7 (the date
of such receipt being the “Notification
Date”) and (B) the
selection of an Independent Counsel, if such determination is to be
made by Independent Counsel, then Indemnitee shall be deemed to
have satisfied the applicable standard of conduct; provided that
such 30-day period may be extended for a reasonable time, not to
exceed an additional 30 days, if the person or persons making such
determination in good faith requires such additional time to obtain
or evaluate information relating thereto. Notwithstanding anything
in this Agreement to the contrary, no determination as to
entitlement of Indemnitee to indemnification under this Agreement
shall be required to be made prior to the final disposition of any
Claim.
(d) Payment
of Indemnification. If, in
regard to any Losses:
(i) Indemnitee shall be entitled to
indemnification pursuant to Section 9(a);
(ii) no
Standard Conduct Determination is legally required as a condition
to indemnification of Indemnitee hereunder; or
(iii) Indemnitee has been determined or
deemed pursuant to Section 8(b) or Section 8(c) to have satisfied the Standard of Conduct
Determination,
then
the Company shall pay to Indemnitee, within five days after the
later of (A) the Notification Date or (B) the earliest date on
which the applicable criterion specified in clause (i), (ii) or
(iii) is satisfied, an amount equal to such Losses.
(e) Selection
of Independent Counsel for Standard of Conduct
Determination. If a Standard of
Conduct Determination is to be made by Independent Counsel pursuant
to Section 8(b)(i), the
Independent Counsel shall be selected by the Board of Directors,
and the Company shall give written notice to Indemnitee advising
[him/her] of the identity of the Independent Counsel so selected.
If a Standard of Conduct Determination is to be made by Independent
Counsel pursuant to Section 8.1(b)(ii), the Independent Counsel shall be selected by
Indemnitee, and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected.
In either case, Indemnitee or the Company, as applicable, may,
within five days after receiving written notice of selection from
the other, deliver to the other a written objection to such
selection; provided, however, that such objection may be asserted
only on the ground that the Independent Counsel so selected does
not satisfy the criteria set forth in the definition of
“Independent Counsel” in Section
1(i), and the objection shall set
forth with particularity the factual basis of such assertion.
Absent a proper and timely objection, the person or firm so
selected shall act as Independent Counsel. If such written
objection is properly and timely made and substantiated, (i) the
Independent Counsel so selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit; and (ii) the
non-objecting party may, at its option, select an alternative
Independent Counsel and give written notice to the other party
advising such other party of the identity of the alternative
Independent Counsel so selected, in which case the provisions of
the two immediately preceding sentences, the introductory clause of
this sentence and numbered clause (i) of this sentence shall apply
to such subsequent selection and notice. If applicable, the
provisions of clause (ii) of the immediately preceding sentence
shall apply to successive alternative selections. If no Independent
Counsel that is permitted under the foregoing provisions of
this Section 8(e) to make the
Standard of Conduct Determination shall have been selected within
20 days after the Company gives its initial notice pursuant to the
first sentence of this Section 9(e) or Indemnitee gives its initial notice pursuant to
the second sentence of this Section 8(e), as the case may be, either the Company or
Indemnitee may petition the Court of Chancery of the State of
Delaware (“Delaware
Court”) to resolve any
objection which shall have been made by the Company or Indemnitee
to the other’s selection of Independent Counsel and/or to
appoint as Independent Counsel a person to be selected by the Court
or such other person as the Court shall designate, and the person
or firm with respect to whom all objections are so resolved or the
person or firm so appointed will act as Independent Counsel. In all
events, the Company shall pay all of the reasonable fees and
expenses of the Independent Counsel incurred in connection with the
Independent Counsel’s determination pursuant to
Section 8(b).
(f) Presumptions
and Defenses.
(i) Indemnitee’s
Entitlement to Indemnification.
In making any Standard of Conduct Determination, the person or
persons making such determination shall presume that Indemnitee has
satisfied the applicable standard of conduct and is entitled to
indemnification, and the Company shall have the burden of proof to
overcome that presumption and establish that Indemnitee is not so
entitled. Any Standard of Conduct Determination that is adverse to
Indemnitee may be challenged by the Indemnitee in the Delaware
Court. No determination by the Company (including by its directors
or any Independent Counsel) that Indemnitee has not satisfied any
applicable standard of conduct may be used as a defense to any
legal proceedings brought by Indemnitee to secure indemnification
or reimbursement or advance payment of Expenses by the Company
hereunder or create a presumption that Indemnitee has not met any
applicable standard of conduct.
(ii) Reliance as a Safe
Harbor. For purposes of this
Agreement, and without creating any presumption as to a lack of
good faith if the following circumstances do not exist, Indemnitee
shall be deemed to have acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best
interests of the Company if Indemnitee’s actions or omissions
to act are taken in good faith reliance upon the records of the
Company, including its financial statements, or upon information,
opinions, reports or statements furnished to Indemnitee by the
officers or employees of the Company or any of its subsidiaries in
the course of their duties, or by committees of the Board or by any
other Person (including legal counsel, accountants and financial
advisors) as to matters Indemnitee reasonably believes are within
such other Person’s professional or expert competence and who
has been selected with reasonable care by or on behalf of the
Company. In addition, the knowledge and/or actions, or failures to
act, of any directors, officer, agent or employee of the Company
shall not be imputed to Indemnitee for purposes of determining the
right to indemnity hereunder.
(iii) No Other
Presumptions. For purposes of
this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere or its equivalent, will not
create a presumption that Indemnitee did not meet any applicable
standard of conduct or have any particular belief, or that
indemnification hereunder is otherwise not
permitted.
(iv) Defense to
Indemnification and Burden of Proof. It shall be a defense to any action brought by
Indemnitee against the Company to enforce this Agreement (other
than an action brought to enforce a claim for Losses incurred in
defending against a Claim related to an Indemnifiable Event in
advance of its final disposition) that it is not permissible under
applicable law for the Company to indemnify Indemnitee for the
amount claimed. In connection with any such action or any related
Standard of Conduct Determination, the burden of proving such a
defense or that the Indemnitee did not satisfy the applicable
standard of conduct shall be on the Company.
(v) Resolution of
Claims. The Company
acknowledges that a settlement or other disposition short of final
judgment may be successful on the merits or otherwise for purposes
of Section 8.1(a)(i) if it
permits a party to avoid expense, delay, distraction, disruption
and uncertainty. In the event that any Claim relating to an
Indemnifiable Event to which Indemnitee is a party is resolved in
any manner other than by adverse judgment against Indemnitee
(including, without limitation, settlement of such action, claim or
proceeding with or without payment of money or other consideration)
it shall be presumed that Indemnitee has been successful on the
merits or otherwise for purposes of Section 8.1(a)(i).
The Company shall have the burden of
proof to overcome this presumption.
9. Exclusions from
Indemnification.
Notwithstanding anything in this Agreement to the contrary, the
Company shall not be obligated to:
(a) indemnify
or advance funds to Indemnitee for Expenses or Losses with respect
to proceedings initiated by Indemnitee, including any proceedings
against the Company or its directors, officers, employees or other
indemnitees and not by way of defense, except:
(i) proceedings referenced in
Section 4 above (unless a court of
competent jurisdiction determines that each of the material
assertions made by Indemnitee in such proceeding was not made in
good faith or was frivolous); or
(ii) where
the Company has joined in or the Board has consented to the
initiation of such proceedings.
(b) indemnify
Indemnitee if a final decision by a court of competent jurisdiction
determines that such indemnification is prohibited by applicable
law.
(c) indemnify
Indemnitee for the disgorgement of profits arising from the
purchase or sale by Indemnitee of securities of the Company in
violation of Section 16(b) of the Exchange Act, or any similar
successor statute.
10. Settlement of
Claims. The Company shall not
be liable to Indemnitee under this Agreement for any amounts paid
in settlement of any threatened or pending Claim related to an
Indemnifiable Event effected without the Company’s prior
written consent, which shall not be unreasonably withheld;
provided, however, that if a Change in Control has occurred, the
Company shall be liable for indemnification of the Indemnitee for
amounts paid in settlement if an Independent Counsel has approved
the settlement. The Company shall not settle any Claim related to
an Indemnifiable Event in any manner that would impose any Losses
on the Indemnitee without the Indemnitee’s prior written
consent.
11. Duration.
All agreements and obligations of the Company contained herein
shall continue during the period that Indemnitee is a director or
officer of the Company (or is serving at the request of the Company
as a director or officer of another Enterprise) and shall continue
thereafter (i) so long as Indemnitee may be subject to any possible
Claim relating to an Indemnifiable Event (including any rights of
appeal thereto) and (ii) throughout the pendency of any proceeding
(including any rights of appeal thereto) commenced by Indemnitee to
enforce or interpret his or her rights under this Agreement, even
if, in either case, he or she may have ceased to serve in such
capacity at the time of any such Claim or
proceeding.
12. Non-Exclusivity.
The rights of Indemnitee hereunder will be in addition to any other
rights Indemnitee may have under the Constituent Documents, the
General Corporation Law of the State of Delaware, any other
contract or otherwise (collectively, “Other Indemnity
Provisions”); provided,
however, that (a) to the extent that Indemnitee otherwise would
have any greater right to indemnification under any Other Indemnity
Provision, Indemnitee will be deemed to have such greater right
hereunder and (b) to the extent that any change is made to any
Other Indemnity Provision which permits any greater right to
indemnification than that provided under this Agreement as of the
date hereof, Indemnitee will be deemed to have such greater right
hereunder. The Company will not adopt any amendment to any of the
Constituent Documents the effect of which would be to deny,
diminish or encumber Indemnitee’s right to indemnification
under this Agreement or any Other Indemnity
Provision.
13. Liability
Insurance. For the duration of
Indemnitee’s service as a [director/officer] of the Company,
and thereafter for so long as Indemnitee shall be subject to any
pending Claim relating to an Indemnifiable Event, the Company shall
use commercially reasonable efforts (taking into account the scope
and amount of coverage available relative to the cost thereof and
the Company’s ability to pay such cost) to continue to
maintain in effect policies of directors’ and officers’
liability insurance providing coverage that is at least
substantially comparable in scope and amount to that provided by
the Company’s current policies of directors’ and
officers’ liability insurance. In all policies of
directors’ and officers’ liability insurance maintained
by the Company, Indemnitee shall be named as an insured in such a
manner as to provide Indemnitee the same rights and benefits as are
provided to the most favorably insured of the Company’s
directors, if Indemnitee is a director, or of the Company’s
officers, if Indemnitee is an officer (and not a director) by such
policy. Upon request, the Company will provide to Indemnitee copies
of all directors’ and officers’ liability insurance
applications, binders, policies, declarations, endorsements and
other related materials.
14. No Duplication of
Payments. The Company shall not
be liable under this Agreement to make any payment to Indemnitee in
respect of any Losses to the extent Indemnitee has otherwise
received payment under any insurance policy, the Constituent
Documents, Other Indemnity Provisions or otherwise of the amounts
otherwise indemnifiable by the Company
hereunder.
15. Subrogation.
In the event of payment to Indemnitee under this Agreement, the
Company shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee. Indemnitee shall execute all
papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to
enforce such rights.
16. Amendments.
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto.
No waiver of any of the provisions of this Agreement shall be
binding unless in the form of a writing signed by the party against
whom enforcement of the waiver is sought, and no such waiver shall
operate as a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver.
Except as specifically provided herein, no failure to exercise or
any delay in exercising any right or remedy hereunder shall
constitute a waiver thereof.
17. Binding
Effect. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors (including any
direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets
of the Company), assigns, spouses, heirs and personal and legal
representatives. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all or a substantial part of the
business and/or assets of the Company, by written agreement in form
and substance reasonably satisfactory to Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if
no such succession had taken place.
18. Severability.
The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any portion thereof)
are held by a court of competent jurisdiction to be invalid,
illegal, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted
by law. Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to
the extent possible.
19. Notices.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
delivered by hand, against receipt, or mailed, by postage prepaid,
certified or registered mail:
(a) if
to Indemnitee, to the address set forth on the signature page
hereto.
(b) if
to the Company, to: CorMedix Inc.
Attn:
Chief Financial Officer
0000
X.X. Xxxxxxx 000, Xxxxx 000
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Notice of change of address shall be effective only when given in
accordance with this Section. All notices complying with this
Section shall be deemed to have been received on the date of hand
delivery or on the third business day after mailing.
20. Governing Law and
Forum. This Agreement shall be
governed by and construed and enforced in accordance with the laws
of the State of Delaware applicable to contracts made and to be
performed in such state without giving effect to its principles of
conflicts of laws. The Company and Indemnitee hereby irrevocably
and unconditionally: (a) agree that any action or proceeding
arising out of or in connection with this Agreement shall be
brought only in the Delaware Court and not in any other state or
federal court in the United States, (b) consent to submit to the
exclusive jurisdiction of the Delaware Court for purposes of any
action or proceeding arising out of or in connection with this
Agreement, and (c) waive, and agree not to plead or make, any claim
that the Delaware Court lacks venue or that any such action or
proceeding brought in the Delaware Court has been brought in an
improper or inconvenient forum.
21. Headings.
The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute
part of this Agreement or to affect the construction or
interpretation thereof.
22. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original, but all
of which together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
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By:
______________________________
Name:
____________________________
Title:
_____________________________
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INDEMNITEE
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_______________________________
Name:
__________________________
Address:________________________
_______________________________
_______________________________
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY ADVANCEMENT OF EXPENSES
Attn:
Chief Financial Officer
0000
X.X. Xxxxxxx 000, Xxxxx 000
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Re: Undertaking to Repay Advancement of Expenses
Dear [ADDRESSEE]:
This undertaking is being provided pursuant to that certain
Indemnification Agreement, dated [___], 201_, by and between
CorMedix Inc., a Delaware corporation (the
“Company”), and the undersigned as Indemnitee (the
“Indemnification
Agreement”). Terms used
herein and not otherwise defined shall have the meanings ascribed
to them in the Indemnification Agreement. Pursuant to the
Indemnification Agreement, among other things, I am entitled to the
advancement of Expenses paid or incurred in connection with Claims
relating to Indemnifiable Events.
I have become subject to [DESCRIPTION OF PROCEEDING] (the
“Proceeding”) based on my status as [an officer/[TITLE
OF OFFICER]/a director] of the Company/alleged actions or failures
to act in my capacity as [an officer/[TITLE OF OFFICER]/a director]
of the Company. This undertaking also constitutes notice to the
Company of the Proceeding pursuant to Section 6 of the
Indemnification Agreement. The following is a brief description of
the [current status of the] Proceeding:
[DESCRIPTION OF PROCEEDING]
Pursuant to Section 3 of the Indemnification Agreement, the Company
can (a) pay such Expenses on my behalf, (b) advance funds in an
amount sufficient to pay such Expenses, or (c) reimburse me for
such Expenses. Pursuant to Section 3 of the Indemnification
Agreement, I hereby request an Expense Advance in connection with
the Proceeding. The Expenses for which advances are requested are
as follows:
[DESCRIPTION OF EXPENSES]
[In connection with the request for Expense Advances set out above,
I hereby undertake to repay any amounts paid, advanced or
reimbursed by the Company for such Expense Advances to the extent
that it is ultimately determined that I am not entitled to
indemnification under the Indemnification Agreement.
This undertaking shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
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Very
truly yours,
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______________________________
Name:
________________________
[Title:]
________________________
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[cc: [ADD PARTY NAME AND ADDRESS AS NECESSARY]]
